Citation NR: 9609971
Decision Date: 04/11/96 Archive Date: 04/24/96
DOCKET NO. 94-30 128 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for defective vision.
3. Entitlement to service connection for gastric reflux,
with heartburn.
4. Entitlement to an increased rating for low back pain,
with degenerative changes, currently evaluated as 10 percent
disabling.
5. Entitlement to an increased rating for pruritus ani, with
internal hemorrhoids, currently evaluated as 10 percent
disabling.
6. Entitlement to a compensable evaluation for erectile
dysfunction.
ATTORNEY FOR THE BOARD
J. A. McDonald, Counsel
INTRODUCTION
The veteran served on active duty from August 1966 to August
1992. This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from the Department of Veterans
Affairs Regional Office in Montgomery, Alabama (hereinafter
RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection for bilateral
hearing loss, defective vision, and gastric reflux with
heartburn is warranted, as these disorders were incurred in
service. He further maintains that manifestations of his
service-connected back disorder, pruritus ani, and erectile
dysfunction are more severe than currently evaluated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has failed to
submit well-grounded claims for entitlement to service
connection for bilateral hearing loss, defective vision, and
gastric reflux, with heartburn. It is the further decision
of the Board that the preponderance of the evidence is
against the veteran’s claims of entitlement to increased
ratings for his service-connected back disorder, pruritis
ani, and erectile dysfunction.
FINDINGS OF FACT
1. Bilateral hearing loss for the Department of Veterans
Affairs (hereinafter VA) compensation purposes, has not been
shown by the evidence of record.
2. Current gastric reflux, with heartburn, has not been
shown by the evidence of record.
3. Compound myopic astigmatism and presbyopia are not
diseases for which VA
disability compensation benefits are payable.
4. Manifestations of the veteran’s service-connected low
back pain, with degenerative changes, produce no more than
mild impairment and characteristic pain on motion.
5. The veteran's service-connected pruritus ani results in
itching, and daily soilage of mucus and faint stool material,
which requires cleaning one to two hours after each bowel
movement.
6. The veteran’s service-connected erectile dysfunction is
being treated with satisfactory results and is shown by
history only.
CONCLUSIONS OF LAW
1. The claims of service connection for bilateral hearing
loss, defective vision, and gastric reflux with heartburn are
not well grounded. 38 U.S.C.A. § 5107 (West 1991).
2. The criteria for an increased rating for low back pain,
with degenerative changes, have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic
Codes 5293-5295 (1995).
3. The criteria for an increased rating for pruritus ani,
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. § 4.114, 7337-7332 (1995).
4. The criteria for a compensable evaluation for erectile
dysfunction, have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7529
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West
1991).
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well-grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is service-
connected; it requires evidence relevant to the requirements
for service connection and of sufficient weight to make the
claim plausible and capable of substantiation. See Franko v.
Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2
Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App. 78,
81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the in-service disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see
also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1995).
Generally, competent medical evidence is required to meet
each of the three elements. However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Derwinski, 5 Vet.App. 91, 92-93 (1993). For
some factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient. However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93.
For the reasons discussed below, the Board finds that the
veteran’s claims for entitlement to service connection for
bilateral hearing loss, defective vision, and gastric reflux
with heartburn are not well grounded. Although the RO did
not specifically state that it denied the veteran’s claims on
the basis that they were not well grounded, the Board
concludes that this error was harmless. See Edenfield v.
Brown, 8 Vet.App 384 (1995) (en banc) (when the Board
decision disallowed a claim on the merits where the United
States Court of Veterans Appeals (hereinafter Court) finds
the claim to be not well grounded, the appropriate remedy is
to affirm, rather than vacate, the Board’s decision, on the
basis of nonprejudicial error). The Board, therefore,
concludes that dismissing the appeal on these issues because
the claims are not well grounded is not prejudicial to the
appellant. See Bernard v. Brown, 4 Vet.App. 384 (1993).
As a claim that is not well grounded does not present a
question of law or fact over which the Board has
jurisdiction, the veteran’s claims for entitlement to service
connection for bilateral hearing loss, defective vision, and
gastric reflux with heartburn must be dismissed. Boeck v.
Brown, 6 Vet.App. 14, 17 (1993). Where a claim is not well
grounded it is incomplete, and VA is obliged under
38 U.S.C.A. § 5103(a) to advise the claimant of the evidence
needed to complete his application. Robinette v. Brown, 8
Vet.App. 69, 77-80 (1995). The discussion below informs the
veteran of the types of evidence lacking, and which he should
submit for well grounded claims.
A. Bilateral Hearing Loss
With respect to the claim for service connection for
bilateral hearing loss, the law and regulations provide that
in the case of an organic disease of the nervous system
(sensorineural hearing loss), if the evidentiary record
demonstrates that sensorineural hearing loss manifested
itself to a degree of 10 percent or more within one year of
separation from service, then service connection for hearing
loss is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 1137 (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.303(b),
3.307, 3.309(a) (1995).
Additionally, for the purposes of applying the laws
administered by the VA, impaired hearing will be considered
to be a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent. 38
C.F.R. § 3.385 (1995). The applicable regulations also
provide that service connection may be granted for any
disease diagnosed after discharge from service when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. §
3.303(d).
The veteran's service medical records are negative for
treatment or findings of bilateral hearing loss during
service. A VA examination conducted in December 1992, found
pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
20
20
25
35
LEFT
10
5
10
25
35
Speech audiometry revealed speech recognition ability of 94
percent, bilaterally. Applying the provisions of 38 C.F.R.
§ 3.385, the veteran does not currently have a hearing loss
disability in either ear for VA purposes.
As there is no current showing of bilateral hearing loss for
VA purposes, the claim of entitlement to service connection
for bilateral hearing loss is not well grounded. See Caluza
v. Brown, 7 Vet.App. 498 (1995); see also 38 U.S.C.A.
§§ 1110, 1131; 38 C.F.R. § 3.303. Therefore, as a matter of
law, it must be dismissed.
B. Defective Vision
The veteran’s service medical records reveal that a
refractive error was noted on eye examination in April 1975.
Thereafter, the veteran was prescribed glasses. In December
1988, compound myopic astigmatism and presbyopia were
diagnosed. In March 1990, it was noted that the veteran had
defective vision, corrected with glasses. A refraction was
reported. On the veteran’s retirement examination in March
1992, it was noted that the veteran had worn glasses since
1974 and that the prescription was adequate. Subsequent to
service discharge, a VA examination in December 1992, noted
that the veteran’s vision was corrected to 20/20.
Refractive error, by regulation, is not a disease or injury
within the meaning of applicable legislation for an award of
VA compensation benefits. 38 C.F.R. § 3.303(c). In the
instant case, the evidentiary record indicates that the
veteran's only eye disorder is that of refractive error. The
veteran does not contend, nor is there evidence which
indicates refractive error due to eye trauma. Indeed, the
finding at the VA examination in December 1992, was normal
ocular health. In the absence of competent medical evidence
showing the existence of an eye disorder other than
refractive error, the Board finds that a well-grounded claim
has not been presented.
C. Gastric Reflux
The veteran's service medical records reveal that he
complained of heartburn in 1988. The impression was
dyspepsia and indigestion reflux. On retirement examination
in March 1992, the veteran gave a history of frequent
indigestion. No findings were made. Subsequent to service
discharge, the veteran was afforded a VA examination in
December 1992. The veteran complained of occasional
heartburn and gastric reflux at night. He related the
complaint to eating spicy food. The abdominal examination
was negative.
As there is no current showing of gastric reflux with
heartburn, the claim of entitlement to service connection for
this disorder is not well grounded. See Caluza v. Brown, 7
Vet.App. 498 (1995); see also 38 U.S.C.A. §§ 1110, 1131; 38
C.F.R. § 3.303. Therefore, as a matter of law, it must be
dismissed.
II. Increased Ratings
Upon review of the record, the Board concludes that the
veteran’s claims for entitlement to increased ratings are
well-grounded within the meaning of the statute and judicial
construction. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990);
38 U.S.C.A. § 5107(a). The VA therefore has a duty to assist
the veteran in the development of facts pertinent to his
claims. In this regard, the veteran's service medical
records, post-service private clinical data, and VA
examination reports have been included in his file. Upon
review of the entire record, the Board concludes that the
data currently of record provide a sufficient basis upon
which to address the merits of the veteran’s claims and that
he has been adequately assisted in the development of these
issues.
With respect to the veteran’s claims for increased ratings,
disability ratings are based, as far as practicable, upon the
average impairment of earning resulting from the disability.
38 U.S.C.A. § 1155. The average impairment is set forth in
the VA's SCHEDULE FOR RATING DISABILITIES, codified in C.F.R.
Part 4 (1995), which includes diagnostic codes which
represent particular disabilities. The pertinent diagnostic
codes and provisions will be discussed below as appropriate.
Although the RO increased the veteran’s disability ratings
for his service-connected low back disorder and pruritus ani
by a rating decision in May 1995, the Court has held that
where a veteran has filed a notice of disagreement as to the
assignment of a disability evaluation, a subsequent rating
decision awarding a higher rating, but less than maximum
available benefit, does not abrogate the pending appeal. AB
v. Brown, 6 Vet.App. 35 (1993).
A. Low Back
Service connection is in effect for low back pain, with
degenerative changes, and assigned a 10 percent disability
rating under the provisions of 38 C.F.R. § 4.71a, 5295-5293
(1995). This rating contemplates lumbosacral strain with
characteristic pain on motion, and mild intervertebral disc
syndrome. Id. A 20 percent evaluation is for assignment
with a finding of muscle spasm on extreme forward bending,
loss of lateral spine motion, unilateral in standing
position, as well as moderate intervertebral disc syndrome
with recurrent attacks. Id. Upon review of the evidence,
the Board finds that the criteria for an increased rating for
low back pain, with degenerative changes, have not been met.
Low back pain was first reported in service in 1973.
Thereafter, the veteran's service medical records document
recurrent low back pain, with paraspinous muscle spasm. X-
rays taken in March 1992 indicated degenerative disc disease
of the L4-5 and L5-S1 levels. Subsequent to service
discharge, the veteran was afforded a VA examination in
December 1992. Evaluation of the spine revealed a normal
range of motion. The veteran was able to flex his spine 90
degrees, with his fingertips reaching to within 5 inches of
the floor. He had 30 degrees of posterior extension, 45
degrees of lateral flexion, and 90 degrees of rotation in
each direction. The motions were executed without hesitation
or complaint of discomfort. X-rays revealed vertebral
heights and intervertebral spaces were within normal limits,
except for L5-S1, where the intervertebral space was
narrowed.
Muscle spasm on extreme forward bending, loss of lateral
spine motion, unilateral in standing position, as well as
moderate intervertebral disc syndrome with recurrent attacks
has not been shown by the current evidence of record. A VA
examination in July 1994 found no spasm or tenderness of the
spine. Range of motion of the lumbar spine was 65 degrees of
flexion, 20 degrees of extension. Supine straight leg
raising was negative for reproduction of radicular pain.
Reflexes and sensation were intact in the lower extremities.
X-rays indicated narrowing and vacuum phenomenon at the L5-
S1, with less severe degenerative disc disease at L4-5. As
such, a higher evaluation under Diagnostic Codes 5293-5295 is
not warranted.
Consideration has been given to the potential application of
the various provisions of 38 C.F.R. Parts 3 and 4, whether or
not they were raised by the veteran. Schafrath v. Derwinski,
1 Vet.App. 589 (1991). A 20 percent evaluation is for
assignment upon a finding of moderate limitation of motion of
the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292
(1995). However, on VA examination in July 1994, flexion was
reported at 65 degrees, extension at 20 degrees. A 40
percent disability rating is for assignment when ankylosis of
the lumbar spine is favorable, and a 50 percent evaluation is
for assignment when ankylosis of the lumbar spine is
unfavorable. 38 C.F.R. § 4.71a, Diagnostic Code 5289 (1995).
However, ankylosis has not been shown.
The Board has also considered functional impairment due to
pain. This requires a determination of the extent to which a
service-connected disability adversely affects the ability of
the body to function under the ordinary conditions of daily
life, including employment. 38 C.F.R. § 4.10 (1995).
Functional loss contemplates the inability to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance, and must be
manifested by adequate evidence of disabling pathology,
especially when it is due to pain. 38 C.F.R. § 4.40 (1995).
A recent examiner noted that the veteran performed all range
of motion functions with no hesitancy or discomfort. The
current 10 percent rating reflects a mild degree of
disability, to include slight limitation of motion of the
lumbar spine. Consequently, any pain affecting strength and
motion is shown to be no more limiting than contemplated by
the current schedular evaluation. The Board therefore
concludes that the rating currently assigned accurately
reflects the degree of disability produced as a result of the
veteran’s lumbar spine disorder, including complaints of
pain.
B. Pruritus Ani
Service connection is in effect for pruritus ani, and
assigned a 10 percent disability rating under the provisions
of 38 C.F.R. § 4.114, 7337-7332 (1995). This rating
contemplates impairment of sphincter control resulting in
constant slight leakage or occasional moderate leakage. Id.
A 30 percent disability evaluation is warranted for a finding
of occasional involuntary bowel movements, necessitating the
wearing of a pad. Id. Upon review of the evidence, the
Board finds that the criteria for an increased rating for
pruritus ani, have not been met.
The veteran’s service medical records reveal that pruritus
ani was first shown in service in 1967. After service
discharge, a VA examination in December 1992 found mild
erythema around the anus. At a subsequent VA examination in
August 1994, the veteran stated he had been treated with
topical corticosteroid medication for his pruritus ani. He
stated that he has daily itching which increased if he
discontinued his Aristocort cream for any length of time. He
noted daily fecal and mucus leakage around the anus which
required careful cleaning. The veteran denied incontinence
of stool or flatus. He further reported occasional bleeding
due to itching and excoriation. On examination, the anal
area appeared clean without hemorrhoidal tags, fissures, or
fistula. There was no excoriation and the anal sphincter
appeared intact. Mild nonprolapsed internal hemorrhoids were
present. A proctoscopy to 25 centimeters revealed no mucosal
lesion other than the internal hemorrhoids.
The evidence of record reveals that the veteran experiences
daily slight leakage. A finding of occasional involuntary
bowel movements, necessitating the wearing of a pad,
warranting a 30 percent disability rating, has not been made.
Id. Therefore, the Board finds that the criteria for an
increased rating for pruritus ani, have not been met.
C. Erectile Dysfunction
The veteran's service medical records reveal that the veteran
was evaluated in 1989 for a progressive erectile dysfunction.
He was treated with injections. He subsequently underwent a
cavernosography which revealed a venous leak. A VA
examination in August 1994, noted that the veteran was
currently being treated with Prostaglandin, with satisfactory
results. The veteran stated that he had an occasional
nocturnal erection which was nonfunctional and fleeting in
duration. On examination, a very slight fullness of the left
spermatic cord was shown as a possible residual from a
previous varicocele. The diagnoses included erectile
dysfunction vasculogenic, by history.
The veteran’s service-connected erectile dysfunction is
currently assigned a noncompensable evaluation under the
provisions of 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7529
(1995). When an unlisted residual condition is encountered
which requires an analogous rating, the first two digits of
the diagnostic code present that part of the rating schedule
most closely identifying the bodily part or system involved,
with a "99" assigned as the last two digits representing all
unlisted conditions. 38 C.F.R. § 4.27 (1995). In this case,
the veteran’s erectile dysfunction was rated analogous to
penis deformity with loss of erectile power, which is rated
as 20 percent disabling. However, as it has not been shown
that the veteran currently has symptomatology of loss of
erectile power, a noncompensable evaluation has been
assigned. The most recent VA examination has noted that the
veteran’s service-connected erectile dysfunction is being
treated with satisfactory results, and therefore, a
compensable evaluation is not warranted.
D. Other Considerations
In exceptional cases where schedular evaluations are found to
be inadequate, the RO may refer a claim to the Chief Benefits
Director or the Director, Compensation and Pension Service,
for consideration of “an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities.” 38 C.F.R. § 3.321(b)(1) (1995). “The
governing norm in these exceptional cases is: A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.” Id. In this regard, the schedular evaluations
in this case are not inadequate. Increased ratings are
provided for certain manifestations of the service-connected
disorders on appeal but the medical evidence reflects that
those manifestations are not present in this case.
Moreover, the Board finds no evidence of an exceptional
disability picture. The veteran has not required
hospitalization due to these service-connected disabilities
nor is there evidence that he is currently receiving
treatment for these disabilities. Id. Accordingly, the RO's
failure to consider or to document its consideration of this
section was harmless error.
As such, increased ratings for the veteran's
service-connected low back disorder, erectile dysfunction,
and pruritus ani are not warranted.
ORDER
The claims of entitlement to service connection for bilateral
hearing loss, defective vision, and gastric reflux with
heartburn are dismissed. Increased ratings for the veteran's
service-connected low back disorder, erectile dysfunction,
and pruritus ani are denied.
JAMES W. ENGLE
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 5904(c)(2)
(West 1991), a finding or order of the Board of Veterans'
Appeals upon review of an agent's or attorney's fee agreement
may be reviewed by the United States Court of Veterans
Appeals under 38 U.S.C.A. § 7263(d) (West 1991). Under
38 U.S.C.A. § 7266 (West 1991), a final decision of the Board
of Veterans' Appeals may be appealed to the United States
Court of Veterans Appeals by a person adversely affected by
the decision within 120 days from the date of mailing of
notice of the decision. The date which appears on the face
of this decision constitutes the date of mailing and the copy
of this decision which you have received is your notice of
the action taken by the Board of Veterans' Appeals.
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